Saturday, April 16, 2011

The Court of Appeal for Ontario's April 14 ruling in Davis v. Crawford, 2011 ONCA 294, appears to broaden the circumstances in which lump sum spousal support awards may be made by Ontario's courts.

The case is noted in our Court of Appeal Report this week, and it is certainly worthy of a further highlight, via this post.

Traditionally lump sum awards for spousal support have only been awarded in situations where the payor's ability and willingness to pay periodic support payments are of serious concern. The Court's previous approach was articulated in Mannarino v. Mannarino(1992), 43 R.F.L. (3d) 309 (Ont. C.A.), in which it held:

The law is clear that lump sum maintenance should be awarded only in very unusual circumstances, where there is a real risk that periodic payments would not be made. Such awards should not constitute a redistribution of family assets in the guise of support. See Jazenko v.Jazenko (1985), 46 R.F.L. (2d) 351 ( Ont. Dist. Ct.), and Zabiegalowski v. Zabiegalowski (1992), 40 R.F.L. (3d) 321 (Ont. U.F.C.).

Indeed, the Court's unanimous ruling in Davis affirms that these remain important consideration, both at common law and from s.33(9) of the Family Law Act. However, Davis affirms that judges' statutory discretion to order lump sum spousal support payments extends considerably beyond those historically-limited circumstances:

[51] We reject the appellant’s submission that Mannarino should be treated as restricting a court’s ability to award lump sum spousal support to situations “where there is a real risk that periodic payments would not be made” or to other limited and “very unusual circumstances”. To the extent that Mannarino has been interpreted in that way, in our view, that interpretation is incorrect.

[52] Both the Family Law Act, R.S.O. 1990, c.F.3 and the Divorce Act (1985, c. 3 (2nd Supp.)) contain provisions conferring a broad discretion on judges to make an award of periodic or lump sum spousal support, or to make an award comprising both forms of support...

[67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.

[68] Similarly, the disadvantages of such an award can include: the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

[69] In the end, it is for the presiding judge to consider the factors relevant to making a spousal support award on the facts of the particular case and to exercise his or her discretion in determining whether a lump sum award is appropriate and the appropriate quantum of such an award.

Will we see more lump sum spousal support awards in the post-Davis family law environment? Certainly, the decision appears to recognize that a broad judicial discretion in this area may be utilized to effect appropriate outcomes in a broader variety of circumstances than was previously understood to be the case.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

About WISE LAW BLOG

Wise Law Blogfeatures timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

Launched on April 5, 2005, Wise Law Blog also highlights key decisions of Canadian courts, with focus on Ontario Family Law, Ontario Employment Law and other areas of interest.

Garry J. Wise is primary contributor to Wise Law Blog. He is a Canadian litigation lawyer who practices with Wise Law Office,Toronto. He is a graduate of Osgoode Hall Law School and was called to the Ontario Bar in 1986.

Garry's colleagues at Wise Law Office, as well as occasional guest bloggers, also contribute to Wise Law Blog.

Follow Us:

Follow by Email

Terms of Use

The articles and comments on Wise Law Blog are intended to provide general information on current issues and developments in the law. They are not intended to provide legal advice. Readers should not rely upon or act on information in this, or any blog without seeking legal advice as to the matters of specific concern to them. No solicitor and client relationship is created or can be created by accessing, reading or commenting upon any post at this site.

Wise Law Blog is not responsible for and does not necessarily agree with the contents of comments posted by readers of this blog. Such comments represent the personal views of the commenters only, and are included on this blog in the interest of promoting public discourse and a free exchange of ideas. We reserve the right to decline or delete any comment posted on this site which we, in our sole and absolute discretion, deem inappropriate for publication on this site.

CBC | Top Stories

CBC | Canadian News

CBC | Technology & Science News

MSNBC.com: Top MSNBC Headlines

BBC News | News Front Page | World Edition

Wise Law Blog, (c)2005-2010 Garry J. Wise and Wise Law Office, Toronto. All rights are reserved. Permission for reproduction and/or republication of any portion of this publication for solely non-commercial purposes is hereby granted provided any such non-commercial use shall include: (a) credit to the original author(s) thereof; (b) printable, embedded hyperlink to original Wise Law Blog post url. Reproduction and republication of any portion of this publication for commercial purposes is expressly prohibited without the permission in writing of the author(s).